Much Ado About Nothing: Why Student Scholarship Has Nothing To Fear from Blogs

Shortly after the popularization of the World Wide Web in 1996, Professor Bernard Hibbitts proclaimed that “[t]he next decade could witness the end of the law review as we know it,” for cyberspace would allow law professors to “finally escape the straitjacket of the law reviews by publishing their own scholarship directly on the World Wide Web.” Earlier this fall, Professor Stephen Vladeck made an equally bold—and equally erroneous—prediction in stating that “[t]he days of the case note . . . may well be numbered.” Ten years later, we now know that Professor Hibbitts’s prediction did not come true. In this Response, I will explain why Professor Vladeck’s prediction will also not come to pass.

I. Blogs and Student Scholarship Serve Different Purposes

Professor Vladeck correctly observes that student scholarship and blogs both primarily focus on current legal developments, and that the fast-paced nature of blogs ensures that student pieces will become preempted long before they appear in print. To make matters worse for student authors, many legal bloggers writing about these current legal developments are leading experts in their fields, making it more difficult for student authors to provide additional insight in their scholarship.

But should student authors, and the law journals that publish them, care about blog preemption? Professor Vladeck tacitly assumes that law journals and legal blogs directly compete with each other. This assumption, however, is incorrect, for blogs and law journals cater to distinct audiences and serve different purposes.

Legal blogs attempt to educate and inform as wide an audience as possible by providing fast, and relatively succinct, commentary on current legal controversies. Consistent with this purpose, individual blog posts have relatively little staying power, for they slowly but surely fall off the blog’s front page as the owner creates new content. Blogs, then, perform a function similar to that of newspapers and magazines, so it should come as no surprise that some newspapers have created their own legal blogs and some legal bloggers consider themselves “citizen journalists.”

In contrast, law journals seek to convey a large amount of information about selected legal topics to a much narrower audience. While law journals fancy themselves “periodicals” and claim to seek a wide audience, no one reads the Columbia Journal of Gender and Law from cover to cover, and members of the general public do not purchase the latest issue of the Harvard Law Review at their local Barnes & Noble. In practice, very few law journals exert a noticeable reach beyond the “walled garden” of commercial legal databases such as Westlaw and LexisNexis. Attorneys, law professors, and law students are the almost exclusive users of such databases, and they search these databases in hopes of finding articles that provide in-depth analyses of unfamiliar legal issues or support for particular propositions or arguments.

A journal’s timeliness is rarely, if ever, a consideration for such users. It is not uncommon for attorneys, professors, and students to rely heavily on journal articles that were first published many years ago. A practicing attorney researching an issue related to Benslimane v. Gonzales could not care less whether the student note she downloaded from Westlaw about the subject went from submission to print in just over three months or just under one year, nor would she care whether a legal blog preempted the note before it was even written. Rather, her only consideration is whether the note can assist her in any way with her present task, whether through summarizing an area of the law not known to her, providing her with a novel legal argument, or simply referring her to relevant cases or other secondary sources that she might have missed during earlier searches.

An inability to easily search and locate archived legal blog content strongly cuts against Professor Vladeck’s concerns about preemption, particularly when one remembers that Internet websites, including blogs, often change URLs or disappear entirely. For instance, one of the blogs Professor Vladeck cites in his own essay—Crescat Sententia—no longer exists at the cited URL. Law journal citations, however, remain static: so long as Westlaw or LexisNexis remain in business, typing “119 HARV. L. REV. 2596” into them will always generate the same article. Until such databases begin to permanently archive blog posts, law journals and their student authors have little reason to care about potential preemption by legal blogs.

II. Blogs Can Only Benefit Student Scholarship

Surprisingly, Professor Vladeck does not consider the many benefits that legal blogs may confer on student scholarship. The “contemporaneous current events coverage . . . often undertaken by the leading experts in the field” may greatly assist student authors throughout the writing process, allowing them to create better case notes and recent developments pieces. In fact, many student authors have already begun to cite legal blogs in their notes and comments. For instance, as of August 16, 2006, twelve student authors had cited Doug Berman’s Sentencing Law and Policy blog, eight had referenced The Volokh Conspiracy, and six had cited SCOTUSBlog.

Legal blogs may also help draw attention to particularly outstanding student-written articles or introduce prolific student authors to the law professor community. Professor Jim Chen has already embraced this function by founding First Movers, a legal blog that showcases the work of “[t]omorrow’s scholars . . . today.”

Professor Vladeck, like Professor Hibbitts before him, has predicted that a new technology will have a disruptive impact on some aspects of the traditional law journal. But student authors, and the law journals that publish them, do not have to fear preemption by legal blogs, for blog posts and journal articles serve very different purposes and do not target the same audiences. In fact, as blogs can only benefit student scholarship by improving the quality of student-written work and encouraging more students to seek publication opportunities, we should expect that the next generation of law students will continue to write case notes and current developments pieces with as much vigor and frequency as they do today.

Anthony Ciolli (aciolli@autoadmit.com) is Chief Education Director of AutoAdmit.com, a regular contributor to First Movers(http://www.firstmovers.org), and has served on the editorial board (Volume 9) of The University of Pennsylvania Journal of Labor & Employment Law.